Conde v. Velsicol Chemical Corp.

• Decision Date: 13 October 1992
• Docket Number: No. C2-85-638.,C2-85-638.
• Citation: 804 F. Supp. 972
• Parties: James P. CONDE, et al., Plaintiffs, v. VELSICOL CHEMICAL CORP., Defendant.
• Court: U.S. District Court — Southern District of Ohio

804 F. Supp. 972

James P. CONDE, et al., Plaintiffs, v. VELSICOL CHEMICAL CORP., Defendant.

No. C2-85-638.

United States District Court, S.D. Ohio, E.D.

October 13, 1992.

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David Kopech, Columbus, Ohio, for plaintiffs.

David Greer, Dayton, Ohio, Joe G. Hollingsworth, Bruce J. Berger, Bonnie J. Semilof, Washington, D.C., for defendant.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiffs James P. Conde, Rhonda Conde, Ryan Conde, Autumn Conde, and Kimberly Conde bring this action alleging that Defendant Velsicol Chemical Corporation ("Velsicol") caused them personal injuries and deprived them of the economic value of their home when Swat Exterminators applied Velsicol's Gold Crest C-100 insecticide to their home. The Condes allege that their exposure to chlordane, the insecticide, caused them headaches, nausea, diarrhea, liver problems, blood irregularities, immune system dysfunction, and other personal injuries. They further allege their house is uninhabitable.

Velsicol has filed the following motions:

1. For summary judgment on issues of medical causation filed June 1, 1992.

2. For summary judgment on fear and emotional distress claims filed June 1, 1992.

3. For summary judgment on product defect claim filed June 1, 1992.

4. For summary judgment on claims for punitive damages filed June 1, 1992.

5. For summary judgment on property damage claims filed June 1, 1992.

6. For summary judgment on warning claims filed June 1, 1992.

7. In limine to exclude opinion testimony of plaintiff Dr. James P. Conde filed June 1, 1992.

8. In limine to exclude opinion testimony of Peter McConnachie, Ph.D. and Arthur Zahalsky Ph.D. filed June 1, 1992.

9. To strike improper Rule 56 material filed July 16, 1992.

10. In limine to exclude evidence of testimony relating to the Illinois grand jury proceeding filed July 16, 1992.

11. In limine to exclude evidence and testimony concerning the August 11, 1987 Memorandum of Understanding and Accompanying Voluntary Product Withdrawal filed July 16, 1992.

12. In limine to exclude from evidence the July 1987 EPA draft Technical Support Document filed July 16, 1992.

13. Second motion to strike improper Rule 56 materials filed August 21, 1992.

14. In limine to exclude evidence and testimony relating to (1974-75) EPA Cancellation proceedings filed September 11, 1992.

15. To exclude evidence and testimony of the 1986 Carcinogenicity Assessment Group Report (CAG) filed September 11, 1992.

16. In limine to exclude opinion testimony of Robert K. Simon, Ph.D. relating to product defect filed September 11, 1992.

17. In limine to exclude opinion evidence concerning the alleged nature of untested house debris as "hazardous waste" filed September 11, 1992.

18. In limine to exclude opinion evidence by Dr. Simon and others concerning alleged presence of transnonachlor in plaintiffs' blood filed September 11, 1992.

19. In limine to exclude evidence concerning death and alleged illnesses of family cat filed September 10, 1992.

20. In limine to exclude evidence and testimony regarding certain state regulatory proceedings and actions filed September 10, 1992.

On June 23, 1992, plaintiffs filed a motion for leave to file a second amended complaint.

The Court will address in this Opinion plaintiffs' motion for leave to file an amended complaint and Velsicol's motions for summary judgment on medical causation, the product defects claim, and the property damage claims, as well as its motions to exclude the opinion testimony of Drs. Conde, McConnachie, and Zahalsky, the motions to strike Rule 56(e) material, and the motion to exclude the July 1987 EPA Technical Support Document. In considering the motions, the Court first outlines the basic facts relating to the Condes' claims against Velsicol. Next the Court grants plaintiffs' motion for leave to file an amended complaint. Then the Court considers the motion for summary judgment on the product defects claim. The Court holds that, reserving ruling on the element of medical causation, plaintiffs state a claim under the consumer expectation test, but that defendant is entitled to summary judgment under the risk benefit analysis.

The Court then turns to the evidentiary motions and denies Velsicol's June 1, 1992 motions to exclude the opinion testimony of Drs. Conde, McConnachie, and Zahalsky. Next the Court grants Velsicol's motion to strike the Epstein article, Harbison affidavit, and Hollingsworth letter, but denies the motion as to the Infante article. The Court denies Velsicol's motion to exclude the 1987 TSD.

Then the Court grants Velsicol's motion for summary judgment on medical causation, concluding that plaintiffs have failed to offer opinion testimony admissible under Rules 702 and 703, Fed.R.Evid. from which a jury could find by a preponderance of the evidence that the Condes' exposure to chlordane caused their symptoms and diseases. Having granted summary judgment on medical causation, the Court further concludes that Velsicol is consequently entitled to summary judgment on plaintiffs' product defects claim. Finally, the Court denies Velsicol's motion for summary judgment on the property damage claims, finding a conflict of material fact about whether the Conde home has suffered compensable property damage.

BASIC FACTS

The Court views the facts in the light most favorable to plaintiffs. When there are fact conflicts, the Court accepts the facts asserted by plaintiffs as true.

In 1982 Darrell Mitchell contracted with the Condes to construct a new home for them at 33449 Wills Hill Road, Pomeroy, Ohio. Mitchell was to provide the Condes with a full pre-treatment of insecticide to protect the home against termites and other pests. He failed to do so. In the Spring of 1983 the Condes had already moved into the house although construction still continued. To provide some termite protection, Mitchell and John Swepston, owner/operator of Swat Exterminating (Swat), agreed to a partial treatment. Mitchell drilled holes into concrete block, and on or about April 8, 1983, Swat applied 400 gallons of Velsicol's Gold Crest C-100 solution to the basement walls and the soil perimeter of the Conde home. Mitchell was then to refill the holes, but he failed to do so.

Plaintiffs assert that following the application, chlordane seeped into the living areas, vaporized, and emitted toxic fumes throughout the house. The Condes allege that soon after their exposure all family members experienced headaches, nausea, diarrhea, and other physical discomfort caused by Velsicol's chlordane. On April 16, 1983, Kimberly Conde, then 15 months old, was hospitalized for dehydration following a bout of severe vomiting, diarrhea, and fever.

When the Condes' search for a cause of their symptoms turned to the termiticide applied in April 1983, Velsicol told them it was safe to remain in their new home. However, they continued to experience headaches, nausea, and other physical symptoms. Their cat died unexpectedly in August 1986, and subsequent tests revealed chlordane in the cat's liver. In November 1986, the Condes moved out of their home. Since then, they have been living in a double-wide mobile home located elsewhere on the same property. Once the Condes moved from their home, their acute symptoms subsided.

Defendant Velsicol asserts, and plaintiffs do not controvert, that the highest average level of chlordane ever measured in the Conde's home is roughly one microgram per cubic meter (1 ug/m3), which is 1/16 part per billion.

Plaintiffs state that chlordane can persist in the human body for up to 30 years. It is retained mainly in fat cells. However, defendant states, and plaintiffs do not controvert, that the Condes are unable to show the presence of chlordane in their bodies at all, despite numerous fat samples, blood samples, urine samples, and liver and bone marrow biopsies.¹

Two of the more serious long-term consequences identified by plaintiffs are that Ryan Conde suffers from an elevated bilirubin count² and that Rhonda Conde has suffered blood irregularities and neurological injury. All plaintiffs argue that due to their chronic exposure to chlordane they have suffered damage to their immune systems and central nervous systems.

Defendant asserts that the Ohio Department of Health has reported that the Conde's house would be habitable with a relatively minor clean-up.³ Plaintiffs do not controvert this assertion in their responsive brief.

Plaintiffs have settled their claims against Swat. The suit continues against Velsicol, the manufacturer of the termiticide (chlordane).

AMENDED COMPLAINT

Plaintiffs' June 23, 1992 motion for leave to file a second amended complaint is GRANTED. All counts relating to Swat Exterminators, Inc. of the amended complaint are DISMISSED with prejudice. Velsicol is not prejudiced by plaintiffs' elimination of all references to Swat Exterminating from the complaint. Swat is no longer a defendant. Plaintiffs' claims against Velsicol have always been based on Velsicol's conduct. If Velsicol believes it has a viable defense based on Swat's alleged negligence, it is free to pursue that defense at trial. Velsicol's remaining objections to assertions made in the Second Amended Complaint are the subject of other pending motions and will not be considered here.

PRODUCTS DEFECTS

In Knitz v. Minster Machine Co., 69 Ohio St.2d 460, 432 N.E.2d 814 (1982), the Ohio Supreme Court held that:

A product design is in a defective condition if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if the benefits of the challenged design do not outweigh the risks inherent in such design.

This formulation of the test for a defective product is based on § 402A of the Restatement (Second) of Torts, which was adopted by the Ohio Supreme Court in Temple v. Wean United, Inc., 50...